ConsRec7etcEn

Debugging some Fake Limits of Patentability in the Council Proposal

Question

Please note articles:

7a, 9, 12, 13a, 13c, 14 and 4a)

Can somebody give explicit comments on this?

Answer

Recital 7a: makes Art 52 meaningless

7a is a workaround around Art 52 EPC.

It implies that a patented object can never be a program for computers as such, because "program fc as such" only covers the expression side of a program, which nobody would want to patent anyway. Thus recital 7a says that Art 52.2c is a dead piece of legal code that never meant anything anyway. Which is of course wrong and legal nonsense. See

for more explanations as to what Art 52(2) means, how it has been interpreted and how it has been rendered void by interpretations such as the one that the Council patent lawyers now want to put into the law.

Recital 9: Suggests Idea Protection for Software

Recital 9 is the same. It says that ideas are not "protected" by copyright and thereby seems to imply that they can be "protected" by something else, i.e. patents. Which is of course legally questionable, as Art 10 TRIPs says that "programs shall be protected as literary works", i.e. the scope of protection shall be roughly analogous to that of music, which is excluded from patentability by Art 52.2b and which also as an expression side and a process side, both of which are covered by copyright, as also in the case of programs.

Recital 12: Meaningless Violation of TRIPs

Recital 12 says that non-technical ideas can be patentable inventions but will (for some very unclear reason and in a very unclear way) be considered obvious ("lack an inventive step"). This mingling of the question of technicity with the question of obviousness is unlogical and unusual in the patent system. It is a special rule, invented by the EPO for the sake of circumventing Art 52 EPC, and the result of this rule is that the EPO/CEC is advocating a "sui generis software patent law" (as pointed out by Prof. Bercowitz, one of the EP's counsellors on the matter) which is probably not allowed under Art 27 TRIPs.

But since the TRIPs process at WTO seems currently dominated by patent fetishists, this won't be pursued. It may however be used to completely throw out the concept of "technical" from the directive during interpretation and I'm sure patent lawyers will use that aspect sooner or later. Therefore Recital 12 is and the like are there to create an ocean of interpretative freedom for the EPO (and to disadvantage national patent offices, which can never decide that any patent is non-technical, because they can only decide about technicity after a substantive patent examination, which they do not conduct).

Recital 13a: Pious Wish

Recital 13a is not bad but quite pliable and not very effective in the context of this proposed directive. The EPO can do whatever it wants and still claim to be observing this recital. It merely needs to say that a technical contribution is present for other reasons than the "mere implementation of an otherwise unpatentable method". E.g. the one-click shopping method is not a "mere implementation of a (not computer-imlemented) business method" but a way of reducing the number of needed mouseclicks. It "solves a technical problem", and such a problem can usually be constructed.

Recital 13c: Wuermeling's Secret

Recital 13c is complete bogus, based on confusions in the mind of Joachim Wuermeling, fodder for laughter by patent lawyers (see Basinski article on FFII site), left in there by the working party only because it comes from the European Parliament and doesn't mean anything. This is the kind of amendments which CEC/Consilium most welcome from the Parliament.

Recital 14: Pious Wish

Recital 14 is a pious wish. The EPO has already drifted to the extreme of granting business method patents on a regular basis. This EPO practise is confirmed by the proposed directive, and there is no reason to assume that the EPO would want to drift further. Nor is there a reason to assume that the Council directive, whose language is much less clear than that of Art 52 EPC, could prevent any drift, when even Art 52 EPC did not prevent the EPO from doing what it wanted to do.

Article 4a is also meaningless, because anything running on a computer can be claimed to "produce a technical effect".

You can find more explanations of these fake limits of patentability on

The Council working party seems quite incapable of coming up with anything new. That's also imho the reason why they simlpy discarded all the parliament's amendments. They continue to hide behind the European Patent Office, and as soon as anyone starts some substantial debate, their card house will collapse.